Friday, 21 January 2011

Digital Economy Act Update

The government seems to be ploughing on with some aspects of the Digital Economy Act despite the upcoming Judicial Review, which makes some sense considering the Judicial Review may fail to halt the Act's progress.

Whilst the Judicial Review is due to be heard in a 3-day hearing starting March 22 - and a parallel review by the Department of Culture, Media and Sport remains open for public submissions until March 23, a draft Statutory Instrument was on Wednesday laid before parliament detailing how the cost of operating the anti-copyright-infringement measures of the Act will be split between ISPs and rights holders.

Rights holders will pay 75%, with the remaining 25% borne by ISPs. This reflects the position announced last spring following an earlier consultation - so no surprises in the draft SI, then.

With no sign of a draft of the main body of the Initial Obligations Code - the legislation which details how the copyright infringement warning scheme will run, appeals will be heard etc - some commentators are surprised that the government should choose now to put this lesser costs order before parliament.

There is some speculation the move is to allow Ofcom to account for costs already spent in this financial year on the Code as reimbursable at some future date, however I haven't seen any credible evidence for this.

This costs order was always going to hit parliament before the meat of the Code, and since it needs to pass both houses (using the "affirmative" process) maybe now is as good a time as any to get this less-controversial instrument passed.

This Government do not believe that people should be able to share content unlawfully, but we are disappointed that the industry has not made faster progress towards adapting its business models to meet consumer demand. I agree with my hon. Friend that there are legitimate concerns about the workability of some aspects of the Digital Economy Act. The Government are looking actively at those questions now, and we will make an announcement in due course.

But his use of language last Tuesday is encouraging, and reinforces what I'm hearing privately from several people closely involved with the development of this legislation.

Firstly I heard that Jeremy Hunt is still pushing for progress from Ofcom on the remainder of the Initial Obligations Code, despite the two separate ongoing reviews. The original deadline for the draft (as laid out in the primary legislation) was November 2011, although the legislation allowed for the Secretary of State to authorise delays.

I also got wind that some groups involved with the development of the Code remain dissatisfied with proposals. I'd guess these are groups representing public libraries and other intermediaries (bodies offering internet access but are not ISPs themselves) as the Digital Economy Act could leave them open to liability or disconnection should someone using their network be accused of downloading infringing material.

Whilst I've received a few tip-offs this week, my contracts in these organisations are unwilling to say anything - even privately - instead hinting at an announcement next week.

I did hear from one contact that Ed Vaizey was stuck in the middle; which doesn't surprise me, if his boss is keen to see progress despite legitimate concerns about the workability, to quote the Deputy Prime Minister, two ongoing reviews and some very grumpy librarians!